The delightful Betsan Powys, who has a truly impressive, absorbing interest in the Legislative Competence Order (LCO) process, has written a lengthy blog post about the Housing LCO, which the Welsh select committee considered as long ago as October last year.
Readers will recall (or perhaps won’t) that the committee reported to the Secretary of State that the draft Order should be approved, with one important proviso:
The full scope of the power to be transferred under a proposed Order, rather than just the current policy intention, should be clearly expressed in the Explanatory Memorandum. Proposed Orders should be drafted so as to transfer only those powers which are required and for which a clear purpose has been established. The same considerations apply to granting to the National Assembly for Wales the ability to abolish the Right to Buy/Right to Acquire. We recommend that the proposed Order be revised so that this power is specifically excluded from its scope. We further recommend that the proposed Order should not proceed unless this proposed revision is made.
Given that the Assembly Government had made it very clear in evidence to the committee that it did not intend to abolish the Right to Buy, one might have thought that this would cause few problems to WAG and that the LCO would proceed fairly swiftly.
Not so; it caused fury in certain quarters of Cardiff Bay and outrage on the part of the Assembly’s presiding officer, Lord Elis-Thomas. The committee’s recommendation, it seemed, had caused a grave constitutional crisis of the greatest magnitude. Everybody got terribly aerated.
So the LCO sat on a shelf for a bit, gathering dust, while tortuous, protracted negotiations proceeded between WAG and the Wales Office. Eventually, a compromise, not to say fudge, was agreed, which provided the Secretary of State with a veto if WAG should ever decide it wanted to abolish the Right to Buy. I personally thought that was a constitutionally questionable solution to the non-problem, in that it effectively turned the Secretary of State into a Governor-General. However, both sides – WAG and the Wales Office – were by now intent, above all, on saving face and both seemed to regard the rather dodgy lash-up as acceptable.
The draft Order was duly tabled; but then disaster struck. The Joint Committee on Statutory Instruments examined it and reported it for “doubtful vires”. In other words, the committee was less than satisfied as to the Order’s legality.
The Order was consequently pulled; heaven knows when it will proceed. Betsan talks of a “third way” to restore it, but, as to what that may be, gives no inkling.
All this is, of course, awfully silly. WAG is effectively holding its breath and stamping its feet in an effort to obtain a competence it never, ever intends to exert. Where’s the sense in that?
One other point of interest that emerges from Betsan’s post is that it reveals that the individual who proposed the Secretary of State’s veto as a solution to the impasse was a Plaid Cymru special adviser. I understand that the gentleman in question is a very special, special adviser who carries a great deal of clout within the Plaid hierarchy.
What, one might ask, was a senior Plaid official thinking, in proposing that the Secretary of State in Whitehall should have the power to inhibit Assembly legislation by extending a downward-pointing thumb?
I have my own theories, but I really don’t want to deprive Betsan of the opportunity of penning another post about this truly fascinating subject.
Are you all still with me?
Lord Elis-Thomas, it seems, is very cross indeed.
